Wednesday, March 7, 2012

GINSBURG V COOLEY

Friend of mine hands me a piece cut out of the newspaper. “What do you think about this, Judge?” Happens all the time.

So here I am, 7 AM of a Wednesday, morning, about to cross verbal swords with Noah Feldman, a Harvard Law Professor who applauds Justice Ruth Bader Ginsberg for saying that South Africa’s constitution is better than ours.

Feldman’s op ed in the Tampa Tribune cites a forthcoming law review article which asserts that countries writing new constitutions these days are not so inclined to mimic the U. S. Constitution as they were half a century ago.

Not to worry, says Feldman. Uncle Sam is still the leader of the free world. Not because of the document composed in Philadelphia in 1787, but because of the way it has been used and abused by the Supreme Court.

Doesn’t matter what Madision, Jefferson, Hamilton and the rest intended.

What matters, says Professor Feldman, is what the constitution ought to mean. Today. In 2012. It is, after all, “a living thing, growing and developing in keeping with changing needs, institutions and circumstances.”

The great jurist and scholar, Thomas M. Cooley must roll over in his grave.
Here’s what Cooley said:

A constitution is not to be made to mean one thing at one time, and another at some subsequent time when the circumstances may have so changed as perhaps to make a different rule in the case seem desirable. A principle share of the benefit expected of written constitutions would be lost if the rules they established were so flexible as to bend to circumstances or be modified by public opinion. It is with special reference to the varying moods of public opinion, and with a view to putting the fundamentals of government beyond their control, that these instruments are framed; and there can be no such steady and imperceptible change in their rules as inheres in the common law…a court or legislature which should allow a change of public sentiment to influence it in giving construction to a written constitution not warranted by the intention of its founders, would be justly chargeable with reckless disregard of official oath and public duty.

All of which is not to say that Justice Ruth Bader Ginsburg was wrong when she opined that Egypt ought to look to South Africa rather than the United States for a model constitution.

I don’t know anything about the South African constitution, but there’s no doubt in my mind that the U.S. Constitution has a few barnacles on it that need attention.

Take the interstate commerce clause, for example. The Constitution gave Congress the power to “regulate interstate commerce.” Two hundred years later there are jet airplanes, interstate highways, telephones, television, computers and ubiquitous Walmarts. Seems like all commerce is interstate.

So Congress undertakes to regulate everything. Read “regulate interstate commerce” to mean “control the national economy.”

So now our ‘living and growing’ constitution permits Congress to tell a barber in Dade City what he can charge for a haircut and how much to pay the kid who sweeps the floor.

Professor Feldman insists that no sane constitution drafters would want future courts to argue about what they intended. Then, rather inconsistently, he says that when a constitution is new –‘fresh from the box’- as he says, the intention is pretty obvious.

That’s the great American constitutional dichotomy: some say the constitution is old and sacred and shouldn’t be changed; others insist the constitution is old and irrelevant and doesn’t have to be changed.

So the John Birch Society and the ACLU make common cause from opposite ends of the political spectrum. They both oppose a convention to propose amendments.

Ginsburg and Scalia on the same side?

You betcha. When you are one of only nine people who get to play God every Monday morning, who would be in favor of letting ‘we the people’ have their say?

Me. And maybe a few other folks. There are now 153 average Americans from 36 states who have registered as delegates to Convention USA.

This discussion about the U.S. Constitution, comes at a time when more and more people are petitioning for amendments to our constitution.

So some feel the constitution is sacred and shouldn't be changed, while others feel it's old and doesn't have to be changed. I'm wondering how Thomas Jefferson would have weighed in on this discussion. How did he view the constitution?

Jefferson's views on the constitution were similar in some ways to his views on the national debt. He believed that the constitution like the debt, belonged to the living. He said, "No society can make a perpetual Constitution or even a perpetual law. The earth belongs always to the living generation... Every Constitution, then, and every law, naturally expires at the end of nineteen years."

Regarding the debt, Jefferson said: "Whether one generation of men has a right to bind another is a question of such consequence as not only to merit decision, but place also, among the fundamental principles of every government... no generation can contract debts greater than may be paid during the course of its own existence."

The South African Constitution might make jurors happy, but it is a far cry from what i would suggest for an improvement over the U. S. Constitution. It suffers from the same fatal flaw of not having a defined code of ethical behavior. It provided for freedoms, and provided for minimal life support systems such as food and housing, equality, and redress; but it does not suggest that all citizens be requited to, at all times, be truthful, to act without malice, to never be deceptive nor to use guile.

It does not instruct that all whole enjoy freedom are obligated to be honorable, to behave in a worthy manner, and to require equal behavior of others. This is a shared ethics which, when followed by the citizens, greatly enhances true freedom, minimizes litigation, breeds an atmosphere of trust, and the reduction of crime. This is an essential atmosphere for true freedom.

Beyond that, the Constitution does not recognize nor provide for ALL of the biological functions to be carried out within the society.The Basic Community Unit

Definition: The Basic Community Unit is the smallest number of interdependent coexisting functions which must operate simultaneously and at some degree of efficiency in order to produce an enviable quality of life at a sufficiently reduced cost which can be sustained. There are 12 essential functions. These are not negotiable; they are biological facts.

Clarification: Just as any organism, whether plant or animal, will have a specific number of organs whose functions interact smoothly if it is to be a healthy, successful member of a species, so must any society, have a specific number of organs, all together carrying out functions efficiently, and as effortlessly as possible, in order to thrive. If any of these functions are not carried out completely and throughout all elements of the society, then unacceptable costs are created to that society and the environment in which it exists which cannot be sustained, and the society can no longer be competitive, therefore, it will not thrive but will become consumedby disease, pass away, and be replaced. (economic decline, moral decline, overthrow, etc.)

Any new constitution should exhibit an awareness of all of these functions, and to recognize the importance in improving their interrelated processes for the betterment of the whole society, as well as each individual within it. An code of ethical code of conduct needs to be make clear as the operational bases for all who participate. It provides the environment within which freedom lives.

Easter is coming to U.S. when 17 more states call for a balanced budget amendment convention. The good news is that 15 of the 17 states had previously applied for a bba convention but rescinded because of the Eagle Forum and John Birch runaway con-con campaign. Now the Balanced Budget Amendment Task Force (www.bba4usa.com) is working on state and national legislation that will hopefully convince the opponents of our nation's first amendment convention that it cannot runaway because the delegates can be instructed, recalled, punished etc if they venture outside the scope of the state's "call."

Easter cannot come soon enough if we are to pass on a nation of prosperity instead of continuing down this path to a tragic Greek ending.

Is there any doubt the Founders' intent was to leave the door open for private incorporation in order to emulate Britain's successful policy in using corporations to secure and govern colonies without being held responsible as sovereigns? I have to believe their intent was to establish the USA as a world power using the power of concentrated wealth (by incorporating private businesses)and the corporate model of capitalism. It now seems to have been a mistake and the corporations no longer recognize the sovereignty of The People. Do we honor their intent, or do we voice our own intent with a revised Constitution in recognition of that error? I bet if there was one thing they could do over, it would be to clarify the legal status of incorporated entities.I would do it thusly:

28th Amendment;

"Corporations are not persons in any sense of the word and shall be granted only those rights and priveleges that Congress deems necessary for the well-being of the People. Congress shall provide legislation defining the terms and conditions of corporate charters according to their purpose; which shall include, but are not limited to; 1 prohibitions against any corporation becoming so large its failure would pose a threat to national security or harm the general economy, 2 prohibitions against any form of interference in the affairs of government, education, and news media, and 3 provisions for civil and criminal penalties to be paid by corporate executives for violation of the terms of a corporate charter."

Our banking system should be no less accountable to The People than our government. As legal "persons", corporations assume the sovereignty reserved for the natural persons that ratified and fought for this contract unjustly (by interfering in the affairs of government, education, and media). Is there a better way to write this?

I wonder what kind of democracy Greeks think South Africa should have. Americans are so concerned about "others" emulating us, and are quick to confuse winning with being copied. At its core any democracy in South Africa needs to be run the way its citizens deem best, just as would be the ideal situation here, yet far from reality on the ground. It's terribly fascinating to ponder what Jane Adams might think about Twitter, or what Benjamin Franklin would do with an iPad, but as long as we sit around ruminating these things nothing will change on the ground here in the states or anywhere. History records oppression, especially in Western culture, for a long long time, and the present is apparently no exception. The only difference between us and our founders is that they had the courage to act on their convictions to change society, whereas this crop of Americans has none. Everyone, including me, participates in this farce democracy, renting themselves to corporations, paying taxes to fund wars and voting for the least worst option. This society needs retooling on a scale that goes way beyond adding an amendment to the constitution, although I do still support the effort as a start.

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